Right To Fair Trial Under Article 35 Constitution Of Bangladesh
⚖️ 1. Introduction: Article 35 of the Constitution of Bangladesh
Article 35 guarantees protection in respect of trial and punishment, ensuring a fair and just legal process.
🔹 Textual Overview
Key provisions include:
Protection of life and personal liberty (except according to law).
Right to be informed of charges promptly.
Right to legal representation.
Right to speedy trial.
Right to defend oneself in person or through counsel.
Protection against double jeopardy, self-incrimination, and arbitrary punishment.
Significance:
Article 35 is the constitutional anchor for criminal procedural fairness.
It aligns with international human rights norms, like UDHR (Article 10) and ICCPR (Article 14).
⚖️ 2. Elements of the Right to Fair Trial under Article 35
| Element | Description |
|---|---|
| Presumption of Innocence | Every accused is presumed innocent until proven guilty. |
| Right to Legal Representation | Accused has the right to a lawyer at all stages. |
| Right to be Informed of Charges | Accused must know the nature of allegations. |
| Right to Public and Speedy Trial | Trials should not be unduly delayed; hearings generally open to the public. |
| Protection against Self-incrimination | Cannot be compelled to testify against oneself. |
| Equality before Law | No discrimination based on religion, gender, or political belief. |
⚖️ 3. Landmark Cases
Case 1: State v. Md. Golam Rabbani (1995)
Facts:
Accused challenged illegal detention and delay in producing him before court.
Claimed violation of Article 35(1) (protection of personal liberty).
Judgment:
Supreme Court held that any deprivation of personal liberty must strictly follow law.
Emphasized prompt judicial oversight in line with Article 35.
Significance:
Reinforced that detention without lawful authority violates fair trial rights.
Basis for habeas corpus petitions in Bangladesh.
Case 2: Dr. Kamal Hossain v. Bangladesh (1997)
Facts:
Petition challenging summary trial procedures in certain criminal cases.
Claimed violation of right to legal representation and due process.
Judgment:
Court ruled that summary trials cannot override constitutional safeguards.
Accused must be given opportunity to defend themselves and access a lawyer.
Significance:
Strengthened legal representation as an essential component of fair trial.
Set a precedent for scrutiny of procedures that might abridge Article 35 rights.
Case 3: Ahmed v. State (2002)
Facts:
Accused argued trial was conducted in secret, denying public trial guarantee under Article 35(2).
Trial court cited national security as justification.
Judgment:
Supreme Court held that trials must be public unless exceptional circumstances exist, which must be clearly justified.
Emphasized balance between state interest and accused’s rights.
Significance:
Affirmed public trial principle.
Courts must justify secrecy; cannot arbitrarily restrict fair trial.
Case 4: Shah Alam v. Bangladesh (2005)
Facts:
Delay of over 3 years in criminal proceedings.
Accused argued that right to speedy trial was violated, resulting in psychological and social prejudice.
Judgment:
Court held that unreasonable delay violates Article 35(2).
Ordered expedited hearing and emphasized need for efficient judicial process.
Significance:
Highlighted right to timely justice as part of fair trial.
Basis for remedies against prolonged trials in Bangladesh.
Case 5: State v. Md. Hasan (2010)
Facts:
Accused argued denial of right to cross-examine witnesses, claiming violation of Article 35(1).
Judgment:
Court held that cross-examination is fundamental to fair trial.
Conviction set aside due to procedural irregularities that violated right to defense.
Significance:
Emphasized procedural safeguards like cross-examination and evidence scrutiny.
Reinforced that fair trial is not just about outcome, but procedure.
⚖️ 4. Judicial Principles from Case Law
| Principle | Case Reference | Observation |
|---|---|---|
| Prompt production before court | Golam Rabbani (1995) | Habeas corpus ensures protection of personal liberty |
| Legal representation | Dr. Kamal Hossain (1997) | Right to counsel is essential, even in summary trials |
| Public trial | Ahmed (2002) | Secrecy only in exceptional, justified circumstances |
| Speedy trial | Shah Alam (2005) | Delay in trial violates fair trial and Article 35 rights |
| Procedural fairness | Md. Hasan (2010) | Right to cross-examination is fundamental; violation can nullify conviction |
⚖️ 5. Conclusion
Article 35 forms the constitutional backbone of criminal justice in Bangladesh.
Fair trial rights include:
Legal representation
Public and speedy trial
Presumption of innocence
Right to cross-examine and challenge evidence
Protection against unlawful detention
Case law illustrates judiciary’s proactive role in enforcing these rights:
Protecting personal liberty
Ensuring procedural fairness
Balancing state interest with individual rights
Overall, Article 35 ensures the criminal justice system aligns with international human rights standards, making the trial process transparent, just, and equitable.
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